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HomeMy WebLinkAbout1991-0488.Cardno.92-10-21 ON ?ARIO EMPLOYES DE LA COURONNE CROWN EMPL 0 YEES DE L 'ON TA RIO GRIEVANCE CQMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 1BO DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. M5G tZ8 TELEPHONE/TELEP~-~O~,,E 180, RUE DUNDAS OUEST. BUREAU 2 ~00, TORONTO (ONTARIO). MSG lZ8 FACSI;~ILE,'TEL~COP~E 488/91 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Cardno) Grievor - and - The Crown in Right of Ontario (Ministry of the Environment) Employer BEFORE B, Kirkwood Vice-Chairperson M. Lyons Member D, Clark Member ~OR THE K, Whitaker GRIEVOR Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR THE M. Farson EMPLOYER Counsel Fraser & Beatty Barristers & Solicitors HE~RING November 19, 1991 April 15, 1992 Page 2 DECISION The griever has been employed as a Maintenance Electrician at the Lakeview Water Pollution Plant since 1982. He alleged that the employer violated Article 4.3 of the collective agreement when the employer reran a job competition for the Foreman (Electrical) position and failed to award him the position. The griever is asking to be placed in the Foreman (Electrical) position retroactively from November 14, 1989, and to receive the appropriate'salary and interest thereon. The position of Foreman (Electrical) was created in May 1989 by assigning some of the duties of the management position of Supervisor, to the Foreman position. The position of Foreman then became the highest position in the bargaining unit. The original job competition was held in Octob.er 1989. The griever competed for the position, but was unsuccessful. Mr. Aurora was the successful candidate. On November 14, 1989, the griever challenged the job competition. As a result of his grievance, the employer agreed in Minutes of Settlement, to rerun the competition among the original applicants, changing the members of the selection panel. In February 1991, the employer reran the competition. - When the employer posted the competition, the employer advised the candidates that 70% was the minimum overall passing mark on a written and an oral test, which would 'be taken at an interview. Only Mr. Bill Sherman and the griever competed for the position. The three members of the new selection panel were Mr. Lewis, the Superintendent of Lakeview Water Pollution Plant, Mr. Berry, the Chief of Technical Services, and Ms. Manonim. The selection panel met with each candidate. They questioned each candidate from the questionnaire created by Mr. Berry. Each Page 3 panelist graded the candidate's responses on their own copy of the questionnaire and the candidate received the average of the scores. The grievor obtained an overall score of 68% and Mr. Sherman obtained an overall score of 55%. The panel reviewed the answers given to the questions asked in the interview, the answers to the written questionnaire, and looked at other information such as resumes, work experience, work history, performance appraisals and the personnel file. Neither candidate was successful. Mr. Radics had been and was the supervisor until he left' ~n 1990. Mr. Aurora became the Foreman after he won the first competition until he left the Ministry in Decembe~ 31,.1990. There has been no supervisor nor foreman from Mr. Aurora's departure to July 1991. The position has been filled by an acting position since July 1991. Union counsel argued that the employer failed to give primary consideration to qualifications and ability to perform the required duties when filling the vacancy, as required by article 4.3 of the collective agreement. Instead, the employer relied on the 70% passmark as the governing criteria for obtaining the job. Union's counsel submitted that the standards applied were unreasonable and irrelevant in the circumstances, and 70% was not a reasonable prerequisite for the job. with respect to the tests, the union did not take issue with the reasonableness, aor the scoring of the written test, but disputed the scoring of the oral test which was determined at the interview. The union challenged the answers to questions 2.6 and 2.7. Union's counsel argued that even if the test was scored accurately, the employer had more than sufficient information to conclude that the grievor was able to perform the job. The grievor had filled the supervisor's position, while the supervisor was on vacation during the four years prior to the posting of the position, for periods of one to two weeks. Since the vacancy arose, he has also filled the position on a rotating basis with five other Maintenance Electricians. Employer's counsel argued that the role of the Board is not to second guess the panel unless the panel was wrong. Employer's counsel argued that the competition process must be fair, and not based upon the subjective analysi~l of the candidates. The employer had developed a selection procedure composed of a written te~t and an oral test in an interview, to provide a uniform and objective"process to evaluate the candidates. . Employer's counsel argued that it was reasonable for the employer to set a minimum passmark. A 70% passmark was a reasonable benchmark for determining the necessary competency for the position of Foreman. The Fore,an position requires leadership and a higher level of excellence than for a tradesman position. Therefore the employer had included questions that were relevant to a foreman position, but were not relevant to a t~uadesman position. Employer's counsel further submitted that the grievor knew the requirements from the posting. Employer's counsel submitted that the employer made its assessment in good faith, but the grievor failed to meet the standards. Therefore employer's counsel submitted that the Board dismiss the grievance. Doug Lewis, the Superintendent of Lakeview, explained that the minimum passmark was based on answers to both the written and oral tests. The employer set a standard of 70% for foreman positions and 65% for tradesmen positions. In his view it was reasonable, as the employer was looking for one of the more qualified tradesmen who had group leadership skills. The employer wanted the foreman to have more precise technical skills and to have a greate~ sensitivity for safety than a tradesman. The 70% passmark was consistent with the standard that the employer had Page 5 -applied when it ran a competition for the position of mechanical foreman. Mr. Lewis recognized that the purpose of the competition was to measure the candidates' skills against the position. To measure 'those skills the panel looked at the responses to the questions and looked to outside material, such as personnel files, performance appraisals and resumes. However, he saw the questionnaire and interview, as testing the veracity of the outside information. When Mr. Lewis considered the grievor's situation, he did not accept less than the 70% mark, as he was concerned with the grievor's safety practices and work habits. Mr. Lewis was concerned that the grievor had been involved in three incidents. Mr. Lewis admitted that he had no direct information on the incidents, and he admitted that no fault was attributed to the grie¥or. The first' incident that caused Mr. Lewis concern, occurred on or about.1985. The grievor was severely burned when installing a breaker in the Master Control Centre. Mr. Lewis did not know the cause of the accident. The second incident involved a dispute between the grievor and his supervisor, which involved a fire in the panel. Again Mr. Lewis did not know many of the details and did not know the cause of the fire. The third incident was not related to safety, but to work habits. The grievor was to install tracks to a primary tank. The task had to be done three times before it was correct. Mr. Lewis recognized that the cause of the problem was disputed and was never resolved. Mr. Lewis said that he was not suggesting that the grievor was at fault, but the incidents, nevertheless caused him concern. As a result of these incidents, Mr. Lewis was not prepared to waive the 70% passmark, although he believed that the grievor was capable of performing the job. Mr. Lewis was prepared to overlook them if the grievor had obtained 71%, but considered them as concerns, when juxtaposed with the grievor's score of 67-68%. Page 6 Mr. Lewis emphasized that certain procedures have to be followed and could not be overlooked, as a foreman had to interact with other trades. These procedures were reflected in the questions. He was not satisfied that the griever responded to question 2.7, giving sufficient attention to safety factors. Question 2.7 was included among the questions as there are a l~rge number of pumps and it was felt that every mechanic and electrician ought to know the procedure for installing new pumps and refurbishing old ones. Mr. Berry estimated that mechanics and electricians worked together on motor driven pumps at least one to two times a month. He wanted to see the electrician' and mechanic work as a team, although he did not expect them to do all steps together. Question 2.7 stated~ You and a mechanic are working as a team on the installation of a motor-driven pump. The motor and pump have been refurbished elsewhere. Describe the installation procedure you. would follow to correctly install the unit and eventually run it. Give details of all the tests you carry out. The desired answer was: 1. Make sure the unit is locked out at the MCC. 2. Disconnect the coupling. 3. Check that the motor! rotates freely. 4. Check that the pump rotates freely - if binding check packing/seals. 5. Check alignment of' pump and motor using the straight-edge and ~ feller or dial in. dicator methods. 6. Check motor insulation resistance. 7. Remove lock-out. 8. Connect motor and check rotation. 9. Lock out unit again. 10. Reconnect coupling. 11. Remove lock-out. 12. Test run unit for approximately i hour with load. 13. Check motor temperature. 14. Check ampere~ drawn. Page 7 15. Check vibration - arrange for vibration analysis. 16. Compare results against nameplate data. The grievor correctly answered numbers 5, 6, 7, 8, 12, 13, 14, 15 for a total of 10 points. Mr. Lewis was concerned that the grievor did not follow the locking procedures, and did not check if the pump was working the right way. Mr. Lewis testified that the grievor answered question 2.6 incorrectly. Question 2.6 stated~ . Give three reasons why speed controllers are used with wound-rotor induction motors and name the two basic typesof manual speed controllers used. The desired answer was: 1. To limit the starting surge of current to the motor (by inserting a resistance in the rotor circuit). 2. To improve the starting torque (as above). 3. To control the speed of a wound-rotor (by varying the resistance in the rotor circuit). 4. Faceplate controller. 5. Drum controller. The grievor responded naming an automatic speed controller, and not a' manual speed controller. However, he was given credit for his answer. Mr. Lewis testified that the panel also looked at the grievor's work history. The panei was aware that the grievor had taken over for the supervisor, Mr. Radics, when Mr. Radics took his vacations, in the four years prior to the competition. The panel assumed that the grievor took on the day to day activities and did not take on all Mr. Radics' responsibilities, such as liaising with consultants and making major purchases. The panel reviewed the grievor's past attendance record, but Mr. Lewis stated that it was the grievor's answers to the questions on the test and his work habits and not his attendance record that P~e 8 prevented him from getting the job. If the grievor had seored 70% overall, on the tests, the panel would probably would have given the grievor the job. He felt that the grievor was capable of performing the job. The grievor admitted that his answer to question 2.6 was wrong and that he was given credit for his answer. The grievor disagreed with the response to question 2.7. He agreed that mechanics and electricians always were involved with 10 horsepower motors where there were pumps involved. There were only one or two times that the electrician worked at the same time on a motor with a pump. He told the selection panel what steps he would take doing the task, but did not advise the panel of the steps that the mechanic would take, nor of the steps taken off the site. Locking out the motor is done by electricians, control and by the mechanics. Checking the motor is not done on the site, but at the shop. Coupling is done by the mechanics, as the electricians do not have the equipment to do it. Article 4.3 of the collective agreement states: In filling a vacancy, the Employer shall give primary consideration to qualifications and ability to perform the required duties. Where qualifications and ability are relatively equal, length of continuous service shall be a consideration. Article 4.3 places the employer's primary consideration on the qualifications and abilities of the candidates to a perform their required duties, when filling a vacancy. The employer has the right to determine how it meets this obligation. It is best able to determine the relevant skills and knowledge. Employers often use questionnaires, as they offer an objective method of assessing candidates and facilitate the employer's ability to compare candidates who have different work and technical experience. Although questionnaires have become an acceptable Page 9 tool for determining candidates' capabilities, they do not, as the employer recognized, necessarily determine, by themselves, the candidates qualifications and abilities. Other information which the employer has such as resumes, performance appraisals and letters of commendation are useful to help determine the qualifications and abilities of candidates. with respect to the grievor's responses to the questionnaire, no further credit is to be given to the grievor for his response to question 2.6. The grievor admitted that he was given credit for his answer, even though it was wrong. With respect to question 2.7, we find that the scope of the question properly related to the tasks of a foreman, as the foreman has to have knowledge of both trades when directing the task. However, the direction of the question was not clear. The use of "you" can refer to both a singular or plural person. Therefore, the answer to the question could be given from the perspective of both members of the team, or from the perspective of one member of the team. It was unclear, what the panel was looking for. Differences in answers given by the grievor and the answers wanted by the employer reflected this ambiguity. The differences related primarily to, who did the task, the mechanic or the electrician, and whether the functions were performed in the shop or on the motor on site. The difference in the response to the question, lay not in the grievor's knowledge, but in his understanding of what was meant as a team. The grievor responded to the tasks that he would perform and not the tasks that the mechanic would perform, even though they were part of a team. The panel, on the other hand, was looking for all.the steps that the team, composed of a mechanic and an electrician would do. However, even if the grievor was to be given full credit for his answer, he would not stiil obtain the 70% passing mark. In this case, the panel did not consider waiving the 70% passmark, as it considered the grievor's responses to reflect his safety practices and work habits. The panel considered the three incidents referred to by Mr. Lewis. They made negative conclusions about the grievor's safety and work practices that were not substantiated by the incidents, nor attributed to the grievor's fault~ As Mr. Lewis testified, he. did not have many of the details. Nevertheless, the panel penalized the grievor, while recognizing that no fault could be attributed to the grievor. In 1985, the grievor was severely burned, while installing a breaker. There was no known reason for the accident, notwithstanding an investigation into the accident. Nor was there any fault attributed'to the grievor for the fire in 1988. There z~y have been a dispute between the grievor and his supervisor, but he was not disciplined or even counselled for his involvement. Finally, Mr. Lewis expressed concern for the grievor's work habits, when there were difficulties installing tracks on a primary tank. Again the grievor was not given the"opportunity at the time to correct any suppositions against him. It was the grievor's testimony, which was uncontested, that the system that was being ins%ailed was ~ew. There were no plans to follow. .After he and Mr. Radics installed the tracks, they saw that it was not done correctly. They contacted the manufacturer and obtained a new set of plans and reassembled the tracks. Although the installation took three attempts aad was done ia three days, the errors were not directly attributed to him. Again, he was not counselled. Therefore there is a fundamental error in the procedure used by the pangl. Mr. Lewis testified that the panel used the questionnaire to test the reliability of its information. In this case, the panel had little information on the earlier incidents and therefore the responses to the questionnaire cannot be said to corroborate any alleged weakness in earlier practices and procedures. Furthermore, the panel relied on suppositions and not facts, and did not give the grievor an opportunity to ~ebut or allay the panel's concerns. Page 11 There was no evidence that would lead the Board to conclude that a 70% result on the tests was an unreasonable indicia of competency for the Foreman position. However, when the incidents cannot be shown to be a reflection of the grievor's failure to follow procedures, or faulty work habits, the incidents ought not to have been used as a basis for determining that the 70% must be the determining factor as to whether the grievor was to get the job. Mr. Lewis did not supervise the grievor on a daily basis, and could not advise the board of any other particular incidents that indicated that the grievor did not follow safety procedures or had inadequate work habits. On the contrary, Mr. Lewis believed that the grievor was capable of performing the job. Other information which the panel had supported the conclusion that the grievor could perform the job. The panel knew from the grievor's resume, that he had supervisory experience in his prior employment. The panel also knew that the grievor had taken on Mr. Radics' responsibilities during Mr. Radics' vacations. Although Mr. Lewis did not consider the grievor as taking over all Mr. Radics functions, the memo to the staff did not differentiate the duties. On the contrary, it specifically stated that the grievor was taking over Mr. Radics functions. Although there may not have been the opportunity to perform all functions in Mr. Radics' job description,, the grievor must still be considered as being fully responsible for. the position while he was in an acting position. In addition, the grievor had received commendation in July 1988, for his co-operation and good effort during a power outage, and in 1989, for his help hooking up an air conditioner when there was insufficient power. The panel also knew that the grievor had been involved in giving input on the safety procedures. As Mr. Lewis stated at the hearing, looking at the past experience may have provided more concrete evidence of the grievor's ability to perform the job than was expressed in the interview. When we consider that the purpose of rerunnng the competition was to determine if any of the candidates in the original competition pool had the qualifications and abilities to perform the job of Foreman (Electrical), we must find that the panel did not use the information it had properly. The panel had other information, which it looked at, but gave no weight to the positive aspects, and relied on unfounded negative aspects. The panel recognized the principle that it ought to look to other information to assess the grievor's qualifications and abilities, but it failed to apply the principle fairly. Therefore we find that the competition as regards the employer's assessment of the grievor's qualifications and abilities seriously flawed. The' panel was prepared to consider waiving the 70% requirement had not the other incidents occurred. As those incidents could not be relied upon, and the panel believed that the grievor was capable of performing the job, we therefore award the grievor the position from the date of the filing of the grievance. We accept the employer's argument that the grievor ought not to be placed in the position retroactively from the first competition. The parties entered into Minutes of Settlement on a "without prejudice" basis and the union agreed to and did withdraw the first grievance. To find that the position was to be effective retroactively from the first competition would be adding a term to the Minutes of Settlement, which would also be prejudicial to the employer and contrary to the agreement of the parties. If the parties had intended to make the rerun of the competition retroactive, they ought to have included such a term in the Minutes of Settlement. Therefore this grievance is.upheld and the griev0r is to be assigned to the position from the date of the filing of the grievance and is to receive any outstanding salary, together with ?a~¢ 13 interest thereon. We will remain seized if the parties are not able to resolve matters arising from the remedy. Dated at Toronto, this 2! day of Oc=ober , 1992. Belinda Kirkwood, Vice-Chairperson :M~chael Lyons, Unio~ Member Don Clark, Empl. oyer Nond. n,e